Citation Nr: 9807041
Decision Date: 03/09/98 Archive Date: 03/25/98
DOCKET NO. 97-13 277A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, N.C.
THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran's claim of entitlement to service
connection for chronic left serous otitis media and residuals
of left ear injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran and A. C. S.
ATTORNEY FOR THE BOARD
P. Gutstein, Counsel
INTRODUCTION
The veteran served on active duty from July 1950 to July
1954.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 1996 rating decision of the
Department of Veterans Affairs (VA), Winston-Salem, North
Carolina, Regional Office (RO), which held that new and
material evidence adequate to reopen the veteran's claim of
entitlement to service connection for chronic left serous
otitis media and for residuals of left ear injury had not
been submitted. The veteran was afforded a video conference
hearing before the undersigned member of the Board in lieu of
a personal hearing in August 1997. Additional evidence was
also submitted subsequent to that hearing, for which initial
consideration by the RO has been waived. The veteran is
represented in his appeal by The American Legion.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran argues, in essence, that trauma to his left ear
in service, of which there is documented treatment, resulted
in post service recurrent drainage of the left ear, requiring
treatment by his personal physician, Dr. Johnson, beginning
around 1956, and resulted in recurrent left ear problems in
the 1990's. It is, therefore, the veteran's claim that he
has submitted evidence which is new and material, and which
establishes the validity of his claim.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been presented for the purpose of reopening the claim of
service connection for chronic left serous otitis media and
residuals of left ear injury.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. Service connection for chronic left serous otitis media,
left ear injury, residuals, was denied by the RO in November
1994. The veteran was notified of that rating decision, and
of his appellate rights, and did not appeal that denial
within the following one year period.
3. New and material evidence, which is probative so as to
raise a reasonable possibility of changing the outcome, has
not been presented since the November 1994 RO decision.
CONCLUSION OF LAW
The evidence submitted since the November 1994 RO decision is
not new and material; thus the claim of service connection
for chronic left serous otitis media and residuals of left
ear injury cannot be reopened. 38 U.S.C.A. §§ 1110, 5107,
5108, 7104, 7105 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.156, 3.303 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual and Procedural Background
Evidence which was of record and was previously considered by
the RO in November 1994 may be summarized as follows:
The veteran's original claim seeking service connection for
an ear injury was received in August 1994. The veteran
claimed that a high pressure hose blew off, hitting his right
ear.
The veteran's service medical records show that on March 6,
1951, the veteran sustained an injury from compressed air the
day before, when an air hose was near his left ear while he
was working and possibly ruptured his drum. Physical
examination revealed the ear markedly inflamed with a
possible perforation. On examination the following day, the
ear demonstrated improved appearance, and no perforation was
evident. There is no further record of treatment for a left
ear disability during the remainder of the veteran's active
service. Specifically, there was no mention of left ear
complaints at various times when the veteran was treated in
service for subsequent unrelated disabilities. The veteran's
examination for separation from service in May 1954 showed a
normal clinical evaluation of the ears.
Post service medical records show aspiration of fluid from
the left ear by V. W. Vaught, M.D., in June 1983; with a
preoperative diagnosis and a postoperative diagnosis of
chronic left serous otitis media. The veteran was treated
thereafter by this physician, with the most current December
1991 report, showing a complaint of itching in the ear again
and pain on the left side, and with reference to the earlier
treatment in 1983. Dr. Vaught's December 1991 report advises
of some retraction in the left ear, with a little pocket
posteriorly, but without any fluid. He had a little eczema
in that ear. There was no reference to any complaints or
treatment during service.
The veteran advised in September 1994, in reply to a request
for evidence, that the records of his treating physician, Dr.
Joseph Johnson, were not available, and the physician closed
his office in 1971.
By rating decision of November 1994, the RO denied service
connection for chronic left serous otitis media, left ear
injury, and residuals (not found), and for residuals, right
ear injury (not shown). The RO noted that the veteran's
claim was for his right ear, but the service medical records
showed that he had a left ear injury. The RO concluded,
based on the evidence, that the left ear injury in service
was shown to be a temporary condition which resolved with
treatment, and no permanent residual disability was shown at
the time of examination. It further concluded that the other
evidence did not connect the onset of any current disability
of the veteran's left ear with the injury in service. The
veteran was notified of that determination and of his
corresponding right to appeal. That decision is final in the
absence of a timely appeal.
The veteran wrote to the RO in November 1994 in order to
correct his claim to reflect that it was for his left ear.
The RO wrote to the veteran in February 1995 to advise that
it was his left ear that was considered, and that he could
reopen his claim with new evidence.
The veteran filed to reopen his claim of entitlement to
service connection for a left ear condition in May 1996, at
which time he submitted a statement from Dr. Vaught, dated
May 7, 1996, advising of the physician's treatment of the
veteran for persistent middle ear disease since 1983. The
physician recited a history of the veteran's suffering a
severe injury to his left tympanic membrane when he was in
the military in 1950. That statement advised that the
veteran was aboard a ship, a rocket exploded, and an air hose
went off next to his head, rupturing the eardrum. The
physician continued that since then the veteran had had
recurrent problems which he thought would persist.
An October 1996 statement was received from M. A. Chrissman,
M.D. He reported that the veteran's records were missing
from a fire that occurred years ago. He reported that the
veteran had permanent left ear damage as a result of combat
duties.
Received in November 1996 was a statement from T. G. C., Jr.,
who served with the veteran and recalled the rocket exploding
from an air strike over Korea in the early 1950's. The
writer advised that another noncommissioned officer explained
to them about the explosion, and told about the high pressure
flexible hose breaking and the air pressure hitting across
the veteran's ear, rupturing the eardrum. The writer
recalled that his bunk was across from the veteran, and that
he had to go back to sick bay several times, and many nights
he was unable to sleep because of the severe pain.
A statement from R. W. Carter, M.D., dated in January 1977
and received the following month, advised of evidence in the
early 1970's of scarring of the veteran's left eardrum. The
cause was unknown and it was noted that the veteran alleged
it was related to some sort of injury in the military. It
was related that this was not documented in the medical
records. The records did show that in 1983 the veteran
developed an ear problem requiring ear tubes in the left ear
for serous otitis, with problems since that time. The
physician had not seen the veteran since 1986.
A former employer, F. B., in a statement dated in January
1997, advised that the veteran worked for him at [redacted]
[redacted] in the late 1950's. The writer stated that on
several occasions the veteran had to leave work because of
severe ear pain.
D. W., an office nurse, stated in a letter received in
February 1997 that the veteran was a patient in Dr. Johnson's
office in the mid-1960's, and that he was having problems
with his ear for which he was injected with penicillin. This
same nurse submitted another statement that was received in
August 1997, detailing that on her further recollection the
veteran was having trouble with his left ear, which
apparently he reported having been recurring since he was
injured while in the Navy. She advised that she administered
injections of penicillin prescribed by Dr. Johnson. She
reported that she knew the veteran for 4 to 5 years.
At the veteran's personal hearing in 1997, he related that
Dr. Johnson had been the family physician ever since he was a
small boy, and he began seeing the veteran after service in
1958. His representative identified the additional
statements they were submitting. One was a more detailed
statement from Dr. Johnson's office nurse recalling that he
was treated for problems after service. The other statement
was from Dr. Johnson's son indicating that the doctor retired
in approximately 1970, subsequently passed away in 1978, and
there were no copies of records. The veteran described
severe pain in his left ear, for which the doctor gave him
penicillin. He said that this occurred in the mid-1950's.
The veteran recalled that following the injury in service,
the ear burst, and all kinds of stuff ran out, and then it
burst again about a year or so later; after that, it was just
up and down. He said he would go to a doctor for medication
so that it would not open up or burst thereafter. A. C. S.
also testified that the veteran was very healthy before
service.
The veteran testified that he was examined by a corpsman at
time of separation from service. He testified that there
were two separate instances when a hose broke and hit him in
the ear. However, he was just treated for one episode of
being struck. He indicated that he believed the initial post
service treatment was after 1956. The veteran testified that
the nurse who submitted the statement that he was treated for
his ear actually began working for Dr. Johnson “somewhere
around ‘60” and that prior to then the doctor was assisted
by another nurse, who was deceased. On questioning by his
representative, the veteran detailed current treatment that
he was receiving for serous otitis.
A further statement from the son of Dr. Johnson, dated in
August 1997, advised that his father did not keep individual
patient profiles on his patients, and that the only copies of
records that he was aware of was copies of those sent to the
doctor from hospitals. It was stated that his office was
cleaned out after his retirement, and all samples were
destroyed; further that his practice was not taken over by
any individual physician, nor was the writer aware of any
other records that might have been left over from his
practice.
II. Analysis
In order to establish service connection for a disability,
there must be objective evidence that establishes that such
disability either began in or was aggravated by service. 38
U.S.C.A. § 1110. Under applicable legal criteria, the
November 1994 RO decision, which denied the veteran's
original claim for service connection for chronic left serous
otitis media, left ear injury, residuals, is final. 38
U.S.C.A. § 7104. However, a claim may be reopened if new and
material evidence is submitted. 38 U.S.C.A. §§ 5107, 5108.
The United States Court of Veterans Appeals (Court) has held
the Board must perform a two step analysis when the veteran
seeks to reopen a claim based on new evidence. First, the
Board must determine whether the evidence is "new and
material." Second, if the Board determines that the claimant
has produced new and material evidence, the claim is reopened
and the Board must evaluate the merits of the veteran's claim
in light of all the evidence, both old and new. Manio v.
Derwinski, 1 Vet. App. 144 (1991).
New and material evidence means evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which, by itself or in
connection with the evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
In determining whether new and material evidence has been
presented, the VA must first decide whether evidence
submitted since the prior final decision is new. "New"
evidence is that which is not "merely cumulative" of other
evidence in the record. Colvin v. Derwinski, 1 Vet. App.
171, 174 (1991). This is done by comparing newly received
evidence with the evidence previously of record. Secondly,
evidence is "material" when it is probative of the issue at
hand, and there is "a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome." Colvin, supra.
See also Evans v. Brown, 9 Vet. App. 273, 284 (1996). In
order to determine whether the newly submitted evidence is
also material, "the adjudicator must consider the specified
bases for the last final disallowance of the claim." Evans,
supra. It should also be pointed out that in determining
whether evidence is new and material, "credibility of the
evidence must be presumed." Justus v. Principi, 3 Vet. App.
510, 513 (1992).
As noted previously, the basis for the November 1994 rating
decision which denied service connection for residuals of
left ear injury and chronic serous otitis media of the left
ear was that the treatment in service was for a temporary
condition, with no permanent residual disability shown at
time of separation from service; further, that other evidence
did not connect the onset of the current disability of the
veteran's left ear, with the injury in service. Therefore,
given the basis of the prior denial on the merits by the RO,
any newly submitted evidence, in order to be found material,
must tend to show that service connection is warranted for
the respective claimed disorder.
Using these guidelines, the Board has carefully reviewed the
additional evidence which has been associated with the claims
folder, since the November 1994 RO decision. Upon review of
the record, it is noted that the veteran has submitted new
evidence, in the form of his testimony, lay statements and
private medical records and statements from Dr. Vaught, Dr.
Crissman, and Dr. Carter. Dr. Vaught, in his 1996 statement,
noted that the veteran ruptured his eardrum in service. This
was not noted in his December 1991 statement, and appears to
rely upon the veteran's history without any specific
findings. Dr. Crissman's report also appeared to rely upon
the veteran's history without any medical basis for the
notation. Dr. Carter reported that their records noted that
he had scarring of his left eardrum in the early 1950's, but
the cause was unknown, although the veteran related it to an
injury in service. Thus while some of the statements
attribute the veteran's left ear disability to service
trauma, all of these statements are based upon history given
to the physicians by the veteran. The Court in Swann v.
Brown, 5 Vet. App. 229 (1993), held a physician's diagnosis
based on facts alleged by the veteran 20 years after service
does not establish a well-grounded claim. Although an
examiner can render a current diagnosis based on his or her
examination of the veteran, a medical opinion regarding
etiology which is specifically reliant upon the self-reported
history of a veteran, can be no better than the facts alleged
by the veteran. Swann, supra. In effect, it is mere
speculation. See Black v. Brown, 5 Vet. App. 177, 180
(1993). As such, these statements do not link the veteran's
current disorder to service, and do not provide a basis for
changing the prior result. In addition, the statements rely
on an inaccurate history, because the service medical records
found no actual eardrum perforation. It is important to note
that the Board is not required to accept as probative
evidence a medical opinion that is clearly based on a
previously rejected medical history from the veteran. See
Reonal v. Brown, 5 Vet. App. 458 (1993).
The statement of Dr. Johnson's former nurse merely attests to
her knowledge of the veteran's treatment for his ear since
1960, and is not probative evidence to establish a
relationship between that event and service. The statements
of Dr. Johnson's son merely attest to the fact that no
records of Dr. Johnson were ever made of the veteran. Such
evidence does not present a basis to alter the prior
decision, and is therefore not probative to the issue.
In regard to the veteran's testimony, contentions, and lay
statements, the Board notes that they are basically
cumulative in nature, and that they are repetitive of the
contentions and evidence previously considered. While the
veteran feels his current disorder is related to events in
service, his assertions and the lay statements he has
submitted are not probative as to any question of medical
diagnosis or causation. See Butler v. Brown, 9 Vet. App.
167, 171 (1996). The appellant's lay assertion in this
regard cannot be considered competent evidence as to medical
causation. See Dolan v. Brown, 9 Vet. App. 358 (1996).
Inasmuch as the appellant is offering his own medical opinion
and diagnoses, the record does not indicate that he has any
such medical expertise. See Espiritu v. Derwinski,
2 Vet. App. 492 (1992). Furthermore, such lay assertions of
medical causation do not suffice to reopen a claim under 38
U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214
(1993).
In summary, the additional evidence, while new, is
essentially cumulative, and does not provide a basis to alter
the prior decision that the veteran's current ear disorder
was not related to service. Accordingly, the Board concludes
that new evidence which is probative of the merits of the
claim and, as such, material so as to raise a reasonable
possibility of changing the outcome, has not been presented.
The Board also would note that a remand, pursuant to 38
U.S.C.A. § 5103(a), (if the veteran's application for
benefits is incomplete, the VA shall notify the veteran of
the evidence necessary to complete the application), is not
necessary. See Graves v. Brown, 8 Vet. App. 523 (1996).
Under the circumstances of this case, the veteran's
application is not incomplete, and the VA has not been put on
notice that other relevant evidence exists, or could be
obtained, which, if true, would make the veteran's claim
"plausible." Robinette v. Brown, 8 Vet. App. 69, 80 (1995);
see also Epps v. Brown, 9 Vet. App. 341 (1996).
Consequently, a remand is not appropriate under the facts in
this case.
ORDER
As new and material evidence to reopen the claim of
entitlement to service connection for chronic left serous
otitis media and residuals of left ear injury has not been
submitted, the appeal is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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